On appeal from the Superior Court, Appellate Division, whose opinion is reported at 153 N.J. Super. 121 (1977).
For affirmance in part and for reversal and remandment as to defendant Cross Country -- Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. Opposed -- None. The opinion of the court was delivered by Sullivan, J.
Plaintiffs appeal as of right from the Appellate Division reversal of a judgment of $1,000,000 in damages entered in their favor in an automobile accident case.
Plaintiff Rosemarie Gilborges suffered serious brain damage and other injuries on December 7, 1973 when the car in which she was riding as a passenger collided with a pickup truck. A jury awarded $1,000,000 in damages against (1) Linda Giannini, the driver of the host car, who was found to be 20% negligent; (2) John Wallace the driver of the pickup truck, who was found to be 80% negligent; and (3) Maple Shade Board of Education which, prior to the trial, had been held as a matter of law to be responsible for Linda Giannini's driving on grounds of agency.
Cross Country Express, Inc., the owner of the pick-up truck and the employer of John Wallace, had been sued by plaintiffs and cross-claimed against by defendant Giannini. However, its motion for involuntary dismissal, made during trial, was granted on the ground that as a matter of law Wallace was not acting as the agent for Cross Country when the accident occurred.
Following the trial, defendant Giannini moved for judgment on her cross-claim for indemnification against defendant Board of Education. The trial judge denied the motion holding that the statute relied on by Giannini, N.J.S.A. 18A:16-6,*fn1 did not apply to the factual situation here involved.
Defendant Board of Education filed a notice of appeal from the judgment and defendants Giannini and Wallace filed cross-appeals. The Appellate Division, one judge dissenting, reversed in part in an opinion reported at 153 N.J. Super. 121 (1977). The majority upheld the jury's findings as to negligence and the degree thereof on the part of defendants Giannini and Wallace. It sustained the dismissal of the complaint and cross-claim against Cross Country and the denial of defendant Giannini's motion for judgment of indemnification against defendant Board of Education.
However, the majority Appellate Division opinion reversed the award of $1,000,000 in damages and remanded this issue for a new trial on the ground that the summation by plaintiffs' attorney was in gross violation of standards enunciated in Botta v. Brunner, 26 N.J. 82 (1958). It also ruled that the trial judge erred in holding that, as a matter of law, defendant Giannini was acting as agent of defendant Board of Education in her operation of the car at the time of the accident. Based on the factual situation presented, the Appellate Division concluded that this issue should have been submitted to the jury.
The majority also concluded that the admission of actuarial expert testimony by Mr. Goodfarb on behalf of plaintiffs was proper under the circumstances. As to Dr. Leshner, an expert called by plaintiffs to establish Rosemarie's potential
loss of earnings by reason of her injuries, the majority held that his opinion that Rosemarie would probably have become a practicing veterinarian was without evidential foundation and should have been excluded. However, the Appellate Division did find a sufficient basis for Dr. Leshner's opinion that Rosemarie would probably have become a college graduate and held that his testimony on that matter was properly submitted to the jury.
The dissenting Appellate Division judge stated that he shared his colleagues' "uneasiness" about the judgment under review. He agreed that the summation by plaintiffs' attorney seemed to run afoul of Botta, but concluded that it did not reach the magnitude of plain error, ...